Debate Over Criminalization

There has been a significant public debate about the extent to which criminal law should be used as a means of regulating and governing business conduct. Conservatives and liberals are split on the issue, even within their own ranks. Below are a series of materials and links intended to provide an overview of competing views in this area. We hope that this presentation of a spectrum of viewpoints will spark an even more thorough and meaningful debate on this issue.

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Traditionally, a violation of the criminal law must consist both in “an evildoing hand” and an “evil-meaning mind.” The latter requirement is known among lawyers by the Latin term, “mens rea” which literally means “guilty mind.” Generally, this requirement meant that a defendant would only be found guilty of a crime if he acted with the intent to do harm, or at least with knowledge that harm would naturally follow from his or her voluntary action. Mens rea was considered an important limitation on the reach of the criminal law because, unlike the civil law, the criminal law carried a heavy social stigma and the possibility of imprisonment. It was, therefore, an appropriate tool for punishing only those whose conduct marked them as having “violated the basic social contract.”